Insurance List for Short Matters

Introduction

The introduction of the National Court Framework reforms, are part of the Court's commitment to the provision of commercial dispute resolution mechanisms that emphasise flexibility, efficiency and cost-effectiveness. As part of the reforms the Court has established an insurance list within the Commercial Contracts, Banking, Finance and Insurance sub-area of the Commercial and Corporations National Practice Area.

The aim is to provide to the insurance commercial community: underwriters, reinsurers, brokers and insureds a list which caters for the prompt and efficient resolution of legal issues to enable the parties to otherwise resolve their disputes without the need for full-blown hearings where a crucial issue could be decided discretely and swiftly.

The list is not intended to deal with all insurance claims, but principally short matters, in particular, of policy interpretation and concerning the operation of insurance legislation. The list will cover marine as well as non-marine insurance. Further, transfers of insurance schemes under the relevant federal legislation may be placed on the list.

The list has been running successfully since March 2016, with the Chief Justice hearing the initial case management of those matters on the list.

Arrangements for Insurance List

The Court established an insurance list in March 2016 within the Commercial Contracts, Banking, Finance and Insurance sub-area of the Commercial and Corporations National Practice Area.

The list is not intended to deal with all insurance claims, but principally short matters, in particular, of policy interpretation and concerning the operation of insurance legislation.

The list will provide a forum for questions of construction of policies or questions of law, especially statutory construction, the hearing of which will take no more than about two hours. The resolution of such questions may not resolve the totality of the particular dispute, but may provide a greater opportunity for the resolution of the balance of the dispute by agreement or mediation. It will also provide a streamlined and expeditious method of policy interpretation where such is important for the wording or pricing of policies more generally.

To the extent that leave to appeal is sought from judgments, such will be arranged expeditiously before judges of the Commercial Contracts, Banking, Finance and Insurance sub-area of the Commercial and Corporations NPA, not necessarily being required to await a Full Court sitting period.

The aim is to provide to the insurance commercial community, including underwriters, reinsurers, brokers and insureds a list which caters for the prompt and efficient resolution of legal issues to enable the parties to otherwise resolve their disputes without the need for full-blown hearings where a crucial issue could be decided discretely and swiftly.

The list will cover marine as well as non-marine insurance. The Court's jurisdiction in relation to marine insurance is wide within its Admiralty and maritime jurisdiction and does not necessarily depend upon the matter arising under the Marine Insurance Act 1909 (Cth). The Court's jurisdiction in relation to non-marine insurance is also wide, but is based usually on the matter arising under a law of the Commonwealth Parliament, generally relevantly in this context a Commonwealth insurance statute, such as is often the case with the Insurance Contracts Act 1984 (Cth). But two things should be noted: First, the word and phrase "matter" and "arising under a law of the Parliament" and drawn from s 76(ii) of the Constitution are very broad: see Allsop, "Federal jurisdiction and the jurisdiction of the Federal Court of Australia" (2002) 23 Australian Bar Review 29 at 34-41; and Lindgren and Branson Federal Civil Litigation Precedents: Tab 1 Introduction to the Jurisdiction of the Federal Court of Australia; secondly, once the matter, that is the whole controversy, is in federal jurisdiction, any question in the matter can be heard in the Federal Court, including any question such as the construction of an insurance policy that does not, of itself, raise any issue of a federal statute.

Practitioners who wish to file a matter to be heard in the list, should provide a statement of no more than half a page, lodged as correspondence at the time of filing, outlining why the application should be heard in the list. Where applicable, practitioners should attach to that statement copies of any insurance policies relevant to the proceeding. A decision will be made by the Court as to the suitability of the matter for the list.

Alternatively, matters may be placed on the list at the discretion of the Court.

The list will no longer be called over on nominated days. Instead, parties will be informed of a time and date for initial case management after the filing of an originating application.

Practitioners are invited to comment on the effectiveness and utility of the list.

Information Sessions

The Chief Justice has conducted information sessions in Sydney, Melbourne, Perth, Brisbane and Adelaide to explain the List, its aims and how it is expected to run.